vicarious liability

Question 1

who’s held liable in vicar liab, and what is their culpability for the tort?

Answer 1

person being held liable is completely innocent of any wrongdoing

Question 2

why is vicar liab invoked?

Answer 2

tortfeasor is in a special relationship with party that’s vicar liab

Question 3

when is contributory liability invoked?

Answer 3

when the D provides assistance to the TF in committing the tort (assistance, tools provided)

Question 4

why are landowners held contrib liable for all torts by Tenant?

Answer 4

landowner has a non-delegable duty - held liable along with tenant even with no “active” negligence

Question 5

what are the three approaches to vicarious liab for car owners?

Answer 5

(1) no vic liab for tortious conduct of another driving his car, “family car doctrine”, “permissive use”

Question 6

what’s the “family car doctrine”?

Answer 6

owner is liable for tortious conduct of immediate family or household members who are driving with owner’s express or implied permission

Question 7

what’s the “permissive use” doctrine related to auto owners vicarious liab?

Answer 7

impose liab for damage caused by anyone driving with owner’s express or implied permission

Question 8

what’s the “dangerous instrumentality doctrine” related to auto owners vic liab?

Answer 8

car is held to be a dangerous instrumentality - if you loan a dangerous instrument, you should be on hook for conseq

Question 9

how does the “dangerous instrumentality doctrine” relate to auto owners vicarious liab?

Answer 9

couples with permissive use statutes

Question 10

what are the three views on vic liab of dram shops?

Answer 10

common law, “dram shop act” states, negligence states

Question 11

how does common law deal with dram shop vicar liab?

Answer 11

no liability on seller for injuries, whether to customer or to 3P, resulting from customer’s intox

Question 12

how do “dram shop act” states deal with dram shop vicar liab?

Answer 12

created cause of action for any 3P against seller for injuries caused by an intox customer

Question 13

how do “negligence”-based states deal with dram shop vicar liab?

Answer 13

liab based on ordinary negligence - foreseeable risk of serving a minor or obviously intox adult

Question 14

define respondeat superior

Answer 14

employer may be liable for negligent acts of his employees that occur within scope of their employment

Question 15

what are the two theories of respondeat superior?

Answer 15

control theory and enterprise theory

Question 16

define control theory of respondeat superior

Answer 16

focuses on WHAT the employee was doing at time of tort - in normal course of employee duties?

Question 17

define enterprise theory of respondeat superior

Answer 17

focuses on PURPOSE of employee’s actions - furthering legit purpose/motive of employer’s business?

Question 18

what happened in Fruit v. Schreiner?

Answer 18

respondeat superior - salesman got into car accident while at convention his employer sent him to

Question 19

what was the holding in Fruit v Schreiner?

Answer 19

insurance salesman was acting within scope of his employ when he was required to attend conference and was left to arrange his own transportation

Question 20

what happened in the Wong-leong case?

Answer 20

RS - employee got into car accident while returning home after drinking party held at work

Question 21

what was the holding in the Wong-leong case?

Answer 21

trier of fact could reasonably find that driver was acting within scope of employ when he was returning home after drinking party held at work

Question 22

what happened in the Buitrago v. Rohr case?

Answer 22

balloon company owner was classified as an IC, not employee, so client couldn’t be held liable for any alleged negligence by owner in causing of car accident on way back to his hotel after completion of work

Question 23

three things that determine whether an employer is liable for an IC?

Answer 23

extent of control over details of the work, whether the IC is employed in a distinct business, whether work is part of regular business of employer

Question 24

what happened in the Ermert case?

Answer 24

RS - duck hunter negligently shot a companion, shooter was pres of company using hunting camp for business purposes and his own recreation

Question 25

what was the outcome of the Ermert case re: vicar liab of group of hunters?

Answer 25

group of hunters didn’t form unincorp. assoc when they agreed to use hunting camp on regular basis so no vicar liab

Question 26

what was the outcome of the ERmert case re: vicar liab of shooter himself (pres of other company)?

Answer 26

corp pres was acting within scope of employ while at hunting camp, permitting corp to be vicar liab for injuries caused when he accidentally shot friend

Question 27

how does scope of employ determination relate to personal motive/benefit?

Answer 27

fact that predom motive of servant is to benefit himself or 3P doesn’t prevent act from being within scope of employ

Question 28

why was the company held vicar liable for the shooter/company pres actions?

Answer 28

he used camp partially for his own recreation, but also used it consistently for business purposes

Question 29

what were the facts in the Courtless case?

Answer 29

scope of employ case - driver hit/killed bicyclist on the way to work when he had stopped for a personal errand

Question 30

what rule came out of the Courtless case?

Answer 30

“going and coming rule” - doctrine of RS is not typically applicable when employee is coming or going to work, except while perofrming duties under scope of employ

Question 31

what’s the “special errand exception” to the going and coming rule?

Answer 31

RS not typically applicable when employee is coming or going to work, except when performing duties under scope of employ

Question 32

define a “frolic or detour” related to RS

Answer 32

occurs when an employee is traveling for employer and deviates from employer’s business to do something personal, commits tort during deviation

Question 33

when will employer be held liable when employee on frolic or detour?

Answer 33

depends on significance of time and geography - if big, then employer not liable, but if small, then employer liab

Question 34

how do you determine if something is a frolic or detour related to RS?

Answer 34

was the purpose of the trip solely fo rthe benefit of the employee?

Question 35

what happened in the Faragher case?

Answer 35

supervising lifeguard sexually harassed lifeguard - employee wants city to be vicar liab

Question 36

what was the outcome of the Faragher case?

Answer 36

employer is vicar liab for actionable discrim caused by supervisor, but subj to defense re: reasonableness of employer’s conduct

Question 37

what’s the general rule for employer liability for intentional torts?

Answer 37

generally an employer is NOT liable for the intentional torts of his employees

Question 38

what are the exceptions to employer liab for intentional torts? (i.e., when are they liable?)

Answer 38

when force is authorized (bar bouncer) or friction is generated (bill collector)

Question 39

what happened in the Sunseri v Puccia case?

Answer 39

restaurant customer brought suit against owner and bartender to recover for injuries received from bartender

Question 40

what was the “dual purpose” rule that came out of the Sunseri v Puccia case?

Answer 40

if employee commits intentional tort with dual purpose of furthering employer’s interest and venting personal anger, RS may result

Question 41

when is liability of employer Inappropriate when it comes to the dual purpose rule from the Sunseri case?

Answer 41

if employee acts purpose in his own interest, not furthering employer’s interest

Question 42

what happened in the Plummer v. Center Psychiatrists case?

Answer 42

therapist committed assault/battery by having sex with patient

Question 43

what test came out of the Plummer v. Center Psych case, and what is it?

Answer 43

activity test - focuses on nature of particular activity that gave rise to intentionally tortious conduct of employee, instead of on employee’s personal motive

Question 44

what case dealt with vicar liab for punitive damages, and what happened?

Answer 44

Brueckner v. Norwich University -freshmen at military college withdrew following hazing

Question 45

what was the outcome of the Brueckner v. Norwich Univ case?

Answer 45

university wasn’t vicar liab for punitive damages re; hazing because their conscious choice to remain ignorant didn’t const. malice, which is required for vicar liab for PD

Question 46

what is the general rule for employer liab for independent contractors?

Answer 46

generally not liable, except if IC is engaged in inherently dangerous activity

Question 47

why is an employer always liable for an IC if IC is performing an inherently dangerous activity?

Answer 47

owner’s duty for that type of activity is by law “nondelegable” or non transferable

Question 48

five times that principal lis liable for injuries caused by IC?

Answer 48

K requires perf of intrinsically dangerous work, principal by law or K is charged with perf of that duty, act creates a nuisance, has high risk of injury, or is illegal

Question 49

what happened in the Bagley v Insight Communications case?

Answer 49

vicar liab - subcontractor injured on the job -

Question 50

what was the holding in the Bagley v. Insight Communications case?

Answer 50

employer not vicar liab here - delegated work didn’t present probab that injury would occur, employer couldn’t have foreseen injury

Question 51

are parents generally vicar liab for tortious acts of their kids?

Answer 51

parent is generally not vicar liab for tortious conduct of their child

Question 52

what’s the majority view of parental vicar liab for tortious acts of kids

Answer 52

parents are liable for the willful or intentional torts of their kids up to a certain $

Question 53

what’s the exception to general non-existence of parental vicar liab for their kids?

Answer 53

if kid commits a tort while acting as agent for the parents (driving mom’s car running errand)

Question 54

how can parents be independently liable for tortious acts of their kids, not just vicar liab?

Answer 54

failing to control or mitigate violent or destructive conduct if kid has a history of such, allowing kid to use a dangerous object

Question 55

how are members of partnerships of joint ventures held vicar liab for each other’s actions?

Answer 55

each member is vicar liab for tortious conduct of another member committed in scope and course of partnership or JV

Question 56

what do a joint venture and a partnership have in common?

Answer 56

JV is more limited in scope, but both require business purpose or sharing of expenses, and mutual right of control

Question 57

what are the four elements needed to establish joint venture liability?

Answer 57

agreement, common purpose, community of interest, equal right of control over instrumentality causing the injury

Question 58

how does joint venture liability come into play among the members themselves?

Answer 58

each member is liable for actions of other members with regard to 3P, but NOT to other members themselves

Question 59

what happened in the Cullip v Domann case?

Answer 59

joint enterprise - teenagers went out hunting together, one of their guns discharged and hit another member

Question 60

what was the outcome of the Cullip v Domann case?

Answer 60

no joint enterprise where each boy was responsible for his own gun (no mutual right of control over instrumentality), and activity was recreational

Question 61

what happened in the Esquivel v. Murray Guard case?

Answer 61

joint enterprise - U-Haul stolen at La Quinta, victim tried to sue security company and hotel

Question 62

what was the outcome of the Esquivel v. Murray Guard case?

Answer 62

no joint enterprise where hotel controls keys given to security guard, no sharing of pecuniary interest, Murray receives hourly rate from hotel